Is Customary Law a Hindrance to Womens Rights in Democratic South Africa?
The constant clash between customary law and women’s rights continues to bedevil the desired development and protection of women’s rights in Africa. African women suffer injustices through restrictions imposed on them in the application of certain customary laws. Customary laws pertaining to marriage, property and succession are amongst the most restrictive and unjust in African customary law. Marriage laws that allow polygamy for example would be an impediment to principles of equality and would even pose health risks with the prevalence of HIV/AIDS, while customary laws that govern succession in many parts would discriminate unfairly between male and female heirs. This dissertation was prompted by issues raised in cases such as Bhe and Shilubana decided in the Constitutional Court of South Africa. In these landmark decisions, the Constitutional Court dealt with the development of customary law so as to align it with the spirit and purport of the Constitution, which is the supreme law in South Africa. The decisions of the above mentioned cases are of particular import to the essay because not only do they seek to advance women’s rights, they also recognise customary law as a cardinal source of law in South Africa. By so doing customary law is accorded its proper place in the South African legal context. The essay focuses on South Africa and the development of women’s rights against recognition and continued practice of customary law. A comparison between the recognition of customary law and development of women’s rights in other jurisdictions, particularly Ghana, Zambia and Zimbabwe and that of South Africa will be made. In as much as South Africa is more progressive in terms of the Constitution, the question still remains whether customary law and certain customary law practices do not undermine or circumvent the ideals of the Constitution.
